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Rock v. State5/9/2001
raid. She told the troopers that they could examine her green Ford Aerostar van. The troopers observed on the van signs of the collision with the bicycle. The state charged Rock with assault in the third degree, a class C felony, and one count of failure to render assistance after an accident resulting in injury, a non-classified felony with a maximum sentence of ten years of imprisonment. The state also charged Rock with driving while intoxicated, a class A misdemeanor.
In her motion to suppress, Rock argued that the court should suppress her statements and evidence from the van because the troopers illegally entered her house after she had attempted to close the door to prevent them from entering. The state contended that Rock consented to the police entry.
Judge Pengilly denied Rock's motion to suppress. He observed that Rock had testified that she was highly intoxicated at the time the troopers arrived at her residence and concluded that it was much more likely that Trooper Christensen's memory was more accurate about what had transpired. He concluded that Trooper Cannell must have put his foot in the door, that Rock attempted to shut the door, and that she was prevented from doing so by Trooper Cannell's foot. He concluded it was reasonable to interpret Rock's attempt to shut the door as an attempt to avoid contact with the troopers but that Rock ultimately had given unambiguous consent to the troopers to enter her residence. He concluded that Rock's apparent initial refusal to allow the troopers to contact her was but one factor to consider in weighing whether the troopers' entry was with consent.
The parties agreed to a court trial based on stipulated facts. Judge Pengilly found Rock guilty of all of the charges. Rock now appeals to this court, arguing that Judge Pengilly erred in concluding that she voluntarily consented to allow the troopers to enter her residence.
Whether consent is voluntary is a question of fact for the trial court to determine from the totality of the circumstances surrounding the purported consent. On appeal, we are to accept the trial court's finding of voluntary consent unless it is clearly erroneous. We conclude that Judge Pengilly's finding that Rock voluntarily consented to allow the troopers to enter her residence is not clearly erroneous.
Rock points to Judge Pengilly's finding that Rock initially attempted to close the door on the troopers to show that she did not voluntarily consent to allow them to enter her residence. Although this fact, standing alone, supports Rock's case that her later consent was not voluntary, we agree with Judge Pengilly that this was merely one factor to consider in determining whether Rock ultimately voluntarily consented to allow the troopers to enter her residence. We previously have held that even when the police have unlawfully entered a residence, a person may still validly consent to the police presence. In Ewers v. State, a state trooper was investigating a charge of a felon in possession of a concealable firearm. Around midnight, the trooper went to a fishing boat that was Ewers's residence. He knocked on the door of the boat and received no answer. He then opened the door a few inches and awakened a man who he thought could contact Ewers. The man yelled to Ewers that a trooper wanted to talk to him. The trooper stepped into the doorway and Ewers came from a different part of the boat and met the trooper. The trooper asked if he could come in out of the weather. Ewers agreed and the trooper talked to Ewers about whether Ewers owned a pistol. When Ewers admitted owning a pistol, the trooper arrested Ewers for being a felon in possession and Ewers was later convicted of this c
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